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Suit No. 102 of 1.974, decided on 14th November, 1982.

‑‑O. XXXIX, r. 2‑Issue of injunction‑Evidence showing no show cause notice served on plaintiff as to occupation of disputed plot and entire action initiated against him on letter issued by Authority having no legal sanctity‑Authority found approving layout plan of plot in question and plaintiff carried out construction according to that plan‑Action of Authority withdrawing layout plan and cancelling construction plan; held, illegal‑Authority permanently restrained from taking action against plaintiff on basis of their letter, in circumstances.

‑‑ S. 69‑‑Bar contained in S. 69, held, applies only when plaintiff files suit to enforce right arising from contract against either firm or any past or present member of same or against third party.

Liaquat Merchant for Plaintiff.

Sajdar Hussain Fani for A: G: for Defendants Nos. 1 and 3.

Nazir Kazi for Defendant No. 2.

Date of hearing: 18th August, 1982.

The suit has been filed against defendants for declaration that the action of defendant, No. I directing withdrawal of the layout plan and order to demolish all construction on the plot in. suit is illegal, without jurisdiction and mala fide. The plaintiff has also sought injunction restraining the defendants from interfering or disturbing the peaceful possession of the plaintiff in respect of property and claimed damages of Rs. 60,000. Brief facts are that about I8 Ghuntas of land in Survey No. 135 in Deh Dring Tapo Malir, District Karachi was allotted to the plaintiff by the Settlement authorities. At the time of survey by the Land Revenue authorities it turned out to be 15 Ghuntas only. This land is situated close to the Hockey Stadium. The plaintiff formed a construction company under the name of Masood Corporation for cons tructing houses. He applied to defendant No. 2 for approval of lay out plan and got 17 separate building plans Approved from them. There after the plaintiff constructed boundry wall and started. construction work. On 20th October, 1973 some persons under the direction' of defendant No. 1 demolished the construction and boundary wall. The demolition squad of defendant No. 2 came on the site next day, demo lished flu remaining construction and removed the building materials. It was on 239h October, 1973 that the plaintiff received a letter of defen dant No. 2 dated 20th October, 1973 stating that the layout. plan had been withdrawn. As a consequence thereof the construction was demolished without any notice to the plaintiff.

2. The defendants Nos. I and 3 were debarred from filing written statement but by order 29th April, 1980 they were permitted to participate in the arguments on the basis of the Court record but were not permitted to lead any evidence. The defendants No. 2 have filed their written statement in which title of plaintiff has been denied for want of knowledge. According to them the Deputy Commissioner, Karachi, the defendant No. 1 had informed them that the land claimed by the plsintif1c is part of the Hockey Stadiums which was left vacant at the time of raising the boundary wall of the stadium for purposes of car pakia8. It has been pleaded that the layout plan in respect of the. land in question was submitted by Zahoor Ahmed Javed a licensed architect on behalf of Masood Corporation which was approved by the defendant No. 2 of 26th December, 1972 subject to a clear title to the land. The permission and approval of layout plan was secured by making misrepresentation: and concealment of fact with regard to the title to the land. The lay out plan was withdrawn by defendant No. 2 on 20th October, 1973 on the basis of the information received from the defendant No. 1's letter 13th October, 1973 in which it was stated that the approval was obtained by misrepresentation of fact. It has been denied that any construction as alleged was raised. Only temporary boundary wall was demolished as the approval of layout plan bad been withdrawn. The claim for damage has also been denied. On the basis of the pleadings the following issues were framed :‑‑

(1) Whether the plaintiff, is the owner/transferee of 18 Ghuntas of the land out of Survey No. 135 situated in Deh Drigh Tape Malir

(2) Whether the sanction/approval of layout plan dated 26th December, 1972 was obtained by the plaintiff by concealment of fact and misrepresentation

(3) Whether the cancellation of layout plan and the withdrawal of approval of 17 construction plan in respect of the plot by defendant No. 2, was illegal, without jurisdiction and mala fide.

(4) Whether the plaintiff constructed boundary wall around the plot and the ground floor premises on the plot according to lay out and approved plans which was demolished by the defendants

(5) Whether the demolition of the construction on the plot by defendants was legal

(6) Whether the defendants removed the construction material from the plot after demolition of the construction

(7) Whether the plaintiff is entitled to recover damage on account of demolition of boundary wall and construction on the plot and removal of building material If so from which of the defen dants and to what amount

8. What should the order be

On 4th November, 1980 an additional issue was framed which was amend ed on 24th November, 1981 as follows:‑

Whether Masood Corporation is a partnership firm registered under section 69 of the Partnership Act. If not what is the effect.

Issue No. 1.‑This issue relates to title of the plaintiff over the land in suit. The plaintiff's prayer in this suit is not for a declaration that the plaintiff is the owner of the land. He has only challenged the defen dant's action of cancellation of layout plan and demolition of the cons truction and has claimed damages. In fact the plaintiff has already filed a suit in the Court of VIII Civil Judge, Karachi being Suit No. 2274/1972 for a declaration that the area of 15 Ghuntas in Survey No. 135 attached with Stadium in Deb Drigh, Tapo Malir; Taluka and District Karachi stands permanently settled upon the plaintiff with the enjoyment of pro prietary rights thereon, which is pending as stated by Mr. Liaquat Merchant. In these circumstances it will not be proper that during the pendency of a suit filed earlier relating to the title of the land; this issue involving the same question may be decided here. In view of the res tricted controversy between the parties in the present suit it is not neces sary to give any finding on this issue.

Issues Nos. 2, 3, 5.‑These issues may be taken together. The plain tiffs have alleged that the layout plan was approved by the defendant No. 2 and it has been withdrawn illegally and without serving any show. cause notice upon him: The defendant No. 2 have admitted that the layout plan was approved in the name of Masood Corporation which was submitted through an architect. This approval was subject to clear title of the plaintiff. The defendant No. 2 have further stated that the layout plan was withdrawn on the letter of. Defendant No. 1. dated 13th October, 1973 Exh. 24/5 which is reproduced hereunder:‑

DEPUTY COMMISSIONER, KARACHI

D. O. No. PDCK/2691

Dated the 13th October, 1973

My dear Abbas,

The District Council, Karachi, had resolved to construct a Hockey Stadium on the amenity Plot No. ST‑3/A in Drigh Colony, the area which was then in its jurisdiction. Accordingly, the above plot measuring 34,400 Sq. yds. was allotted to the District Council by K.D.A. vide its allotment order No. F. 3(35)/65‑Restt/T‑II/199, dated 11th January, 1965. The District Council is, since then, in possession of the plot on which a Hockey Stadium has been constructed. The front portion of the plot facing the main road was left vacant at the time of raising the boundary wall, for the purposes of Car Parking etc. This open space which forms part of the Stadium, has, somehow, been encroached a on by certain people, who have also one to the Civil Court.

The unauthorised construction' is being carried out on the above plot by one Haji Murad Ali who has, managed to get his building plan approved by the K. D. A. It is not understood how the K. D. A. could approve the plan of a building to be constructed on a plot which is not meant for that purpose but has exclusively been reserved by K. D. A. itself for the Hockey Stadium. Even in the amelioration plan of Drigh Township which has been prepared and approved by the Town Planners, K. D. A. St‑3/A measuring 7 acres (34,400 sq. yds.) has been shown as an amenity plot and has been reserved for Hockey Stadium.

If you could have a glance at the amelioration plan you will see that the entire land surrounded by four roads has been shown as one plot of 7 acres (34,400 sq. yds.) which has been numbered as St‑3/ A. Again this whole plot has been allotted by K. D. A. to the District Council vide its allotment order quoted elsewhere for the exclusive purposes of cons tructing the Hockey Stadium.

It appears that the approval of the building plan has been obtained by the interested party trough misrepresentation of facts.

You are, therefore, requested to kindly look into the matter per sonally, examine the whole thing and get the approval of the building plan withdrawn. I will also then request you for stopping the unauthorised construction being carried out at the above amenity plot.

With kindest regards

Yours

(Parvez Ahmed Butt)

Mr. Abbas Husain Shah,

Director‑General

Karachi Development Authority

Karachi.

Following up the action the defendant No. 2 addressed a letter dated 20th October, 1973 Exh. 24/6 to Zahoor Ahmed Javid the licence architect of the plaintiff stating as follows:‑‑‑

By Registered Post

20th October,

Mr. Zahoor Ahmed Javid

Licensed Architect,

c/o 121 Garden Market,

Garden West,

Karachi.

Subject:‑‑Layout plan on portion of Survey No. 135 Deh Drigh Tapo Malir, Karachi.

In view of Deputy Commissioner, Karachi D. O. letter No. PDCK/ 2691, dated 13th October, 1973, the approval of the above mentioned layout vide this office letter No. Deh/C‑45/72/5453, dated 26th December, 1972 is hereby withdrawn since it was obtained by misrepresentation of facts.

(S. NAEEM AHMED),

Town Planner (Control).

Copy to :‑

(1) Haji Murad Ali son .of Syed Aulad Ali, care of Ration Shop No. 1349, Agra Taj Colony, Karachi.

(2) Deputy Commissioner, Karachi, for information.

(3) Architect (Control) K.D.A., for information.

(S. NAEEM AHMED),

Town Planner (Control).

According to the plaintiff no prior notice was served upon them. A notice dated 18th October, 1973. Exh. 25/1 under Art. 69 of K. D. A . Order to stop construction work was issued by the defendant No. 2. They have led evidence to show that this notice was duly served on the plaintiff. This notice calls upon to stop the work on the said plot and is addressed to Masood Corporation through Javid with copy to the owner. The defendants No. 2 have produced two documents purporting to be receipts acknowledging the receipt of the notice but these documents have not been proved nor they have been exhibited. In the absence of any proof that the notice was served on the plaintiff or Masood Corporation the defendant No. 2 have failed to establish that the action had been taken after service of notice to the plaintiff. The defendants No. 2 have produced the noting sheets of the file from which it seems that the action was initiated on 17th September, 1973 but the action of the plaintiff was not considered to be illegal. However, after the receipt of the letter of defendant No. 1 the matter was renewed and accelerated on 15th October, 1972. On 18th October, 1973 direction was issued to issue notice to the plaintiff to stop the construction. According to the file of Defendant No. 2 the notices were prepared and signed the same day ,and were served the same day. Again on 20th October, 1973 an order to demolish the construction was passed and action was taken by the defendant No. 2. The D. W. 2 has stated that notice dated 18th October, 1973 was delivered to one Mehdi at the site which has been denied by the plaintiff. Even if this version of the defendant No. 2 is accepted there it is notice dated 18th October, 1978 which was served requiring the plaintiff to stop construction. No notice for demolition or removal of construction was served upon the plaintiff.

It is clear from the evidence that the entire action was initiated on the letter of the defendant No. 1 and no show‑cause notice or opportunity to defend and explain that the plot was lawfully occupied by the plaintiff and that no misrepresentation has been made by the plaintiff was afforded to the plaintiff. The defendant No. 2 have taken the plea that their action of cancelling the layout plan and demolition is valid and legal. In support of this contention reference has been made to Art. 69 of K.D.A. Order, 1957. It does not provide that no notice shall be issued‑ to the other side. In the present case the defendant No. 2 had approved the layout plan and the building plan. The plaintiff was carrying out construction work according to the said approved plans. The defendant No: 2 on the basis of the letter of defendant No. 1 without making any, inquiry or even asking the plaintiff to explain, presumed that the layout plan was obtained by misrepresentation of fact and cancelled the layout plan and in. consequence thereof took subsequent actions. The defendants No. 2 were acting under the direction of defendant No. 1 and their entire action was arbitrary and not warranted by law as it was taken with out serving any prior notice on the plaintiff. In the facts and circum stances of the case the provisions of Art. 69 cannot be pressed in service. I therefore, hold that the action of the defendants No. 2 in cancelling the layout plan and subsequent action on it was illegal. The defendant No.2 will however be entitled to take any action and pass any order as provided under law after affording a proper opportunity of hearing to the plaintiff.

Issues Nos. 4, 6 and 7.‑The defendants No. 2 have admitted demolition of boundary wall but have denied that there existed any other construc tion. Mr. Liaquat Merchant the learned counsel for the plaintiff has stated that the plaintiff does not press issue No. 7 under which damages have been claimed for demolition of the construction. Finding on these issues would have been necessary if the plaintiff would have claimed damages. As issue No. 7 has not been pressed no finding on issues Nos. 4 and 6 is necessary.

Additional Issue : In the present suit the plaintiff has alleged that the plaintiff is the sole proprietor of Masood Corporation in whose favour plan had been approved. P.W. 1 has testified to this effect. Only P.W. 2 had stated that Masood Corporation is an unregistered partnership firm. However, he again stated that he had said so due to misunderstanding. He has explained that he had never seen Abdul Rahman and as there were several other persons who used to come to the office he thought all of them as partners. There is no other evidence to show that the plaintiff is a partner of Masood Corporation. In any event bar of section 69 of the Partnership Act will apply only when the plaintiff files a suit to enforce a right arising from a contract against either the firm or any past or present member of it or against any third party. The present suit is no based on either ground. My finding is, therefore, in the negative.

Issue No. 8. The suit is decreed to the effect that the action of the defendant No. 2 to withdraw the layout plan and cancellation of the cons truction of plan on the basis of their letter dated 20th October, 1973 is illegal. The defendants No. 2 are permanently restrained from taking any action against the plaintiff on the basis of their letter dated 20th October, C 1973. It will however be open to the defendant No. 2 to take any action against the plaintiff according to law after serving proper notice on him, The parties to bear their own cost.

M.Y.M. Suit decreed.

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